Citation Nr: 9925783
Decision Date: 09/10/99 Archive Date: 09/21/99
DOCKET NO. 94-14 598 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Medical Center in Houston,
Texas
THE ISSUE
Entitlement to reimbursement or payment of unauthorized
private medical services incurred at Memorial Medical Center
in January 1997.
(The issues of whether new and material evidence has been
submitted to reopen claims of entitlement to service
connection for an eye disorder and psychophysiologcial
headaches will be considered in a separate decision.)
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
James R. Siegel, Counsel
INTRODUCTION
The veteran served on active duty from January to August
1953.
By letter dated in February 1998, the Department of Veterans
Affairs (VA) Medical Center in Houston, Texas, (agency of
original jurisdiction or AOJ) notified the veteran that he
was not entitled to reimbursement for unauthorized private
medical treatment he received in January 1997 at Memorial
Medical Center.
Effective March 1, 1999, the name of the United States Court
of Veterans Appeals was changed to the United States Court of
Appeals for Veterans Claims ("the Court").
FINDINGS OF FACT
1. Service connection is not in effect for any disability.
2. The veteran was treated at Memorial Medical Center on
January 5, 1997 for complaints of a headache following a head
injury in December 1996.
CONCLUSION OF LAW
The criteria for payment or reimbursement of unauthorized
medical expenses have not been met. 38 U.S.C.A. § 1728 (West
1991); 38 C.F.R. § 17.120 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Factual background
In a letter dated December 22, 1996, the veteran stated that
he suffered a serious injury to his head on December 19, 1996
as he was attempting to get in a VA van.
VA outpatient treatment records show that the veteran was
seen on December 31, 1996 and complained of a severe
headache. He related that he struck his head on the roof of
a VA van on December 19, 1996. It was noted that this was
the first time he had sought treatment for this complaint.
The veteran was seen in Memorial Medical Center on January 5,
1997. He reported that he had hit his head on a van on
December 19, 1996, and had pain.
The veteran went to a VA outpatient clinic on January 6, 1997
and noted that he had been treated the previous day for a
severe headache. He noted that he had been given Darvocet
for pain and had experienced some relief.
In a statement dated in January 1997, the driver of the van
indicated that he had not seen anyone bump his head hard
enough to call it an injury.
An undated report of accident by a "safety person" notes
that he had been first told of the veteran's accident on
December 31, 1996. At that time, the veteran seemed to be
well, and said he was fine. The writer of the report spoke
to the van driver and he could not recall the incident. He
also contacted all but three of the other riders in the van
and two recalled that the veteran had hit his head, but that
it was nothing serious. It was concluded that the veteran
sustained a slight blow to the head and had not sought
medical attention at the time of the injury, despite the fact
that he was injured while traveling to a hospital where
treatment was available.
In May 1997, the Associate Chief of Staff for Ambulatory Care
noted that the veteran was not treated for a service-
connected disability, and that an emergency did not exist.
He noted that a VA medical center was not feasibly available.
In a memorandum dated in October 1997, a VA physician
reviewed the veteran's medical records, including information
before and after the alleged trauma to the head in December
1996. Based on the record and documents presented to him,
the VA physician concluded that no injury resulted from the
veteran's hitting his head on the VA van. The veteran could
have sought treatment at the VA, but chose instead to seek
treatment at a private hospital seventeen days after the
alleged injury. The treatment rendered at that private
facility was not at the request of the VA medical staff.
The veteran has not been granted service connection for any
disability.
Analysis
In order to be entitled to reimbursement or payment for
medical expenses incurred without prior authorization from
the VA, all of the following must be shown: (a) That the
treatment was either: (1) For an adjudicated service-
connected disability, or (2) for a nonservice-connected
disability associated with and held to be aggravating an
adjudicated service-connected disability, or (3) for any
disability of a veteran who has a total disability permanent
in nature resulting from a service-connected disability; or
(4) for any illness, injury, or dental condition in the case
of a veteran who is a participant in a vocational
rehabilitation program and is medically determined to have
been in need of such care or treatment to make possible such
veteran's entrance into a course of training, or prevent
interruption of a course of training; (b) that a medical
emergency existed and delay would have been hazardous to life
or health; and (c) that no VA or other Federal facilities
were feasibly available and an attempt to use them before
hand or obtain prior VA authorization for the services
required would not have been reasonable, sound, wise, or
practicable, or treatment had been or would have been
refused. 38 U.S.C.A. § 1728 (West 1991); 38 C.F.R. § 17.120
(1998) [formerly 38 C.F.R. § 17.80]. Failure to satisfy any
one of the three criteria listed above precludes the VA from
paying unauthorized medical expenses incurred at a private
hospital. Hayes v. Brown, 6 Vet. App. 66, 69 (1993).
The veteran is seeking reimbursement for medical expenses he
incurred in January 1997 for treatment for complaints
following a head injury. As noted above, service connection
has not been established for any disability. Accordingly,
the veteran does not meet the first part of the three-part
test set forth in the regulation cited above. While there is
no need to address any of the other aspects of the test, the
Board points out that a VA physician, following a review of
the record, concluded that a medical emergency did not exist.
In order to obtain reimbursement for the cost of the
treatment the veteran received in January 1997 at Memorial
Medical Center, all three criteria set forth above must be
met. Since the veteran did not meet part (a), the claim must
be denied.
In Sabonis v. Brown, 6 Vet. App. 426, 430 (1994), the Court
held that in a case where the law is dispositive of the
claim, it should be denied because of lack of legal
entitlement under the law.
ORDER
The claim for payment of unauthorized medical expenses
incurred at Memorial Medical Center in January 1997 is
denied.
Deborah W. Singleton
Member, Board of Veterans' Appeals